Parliament is planning to pass a law saying how much freedom its members (and others involved in its proceedings) have from legal liability. What's more, it's telling the courts that they've stuffed that issue up.

I'm away to Australia for an academic junket (cough, cough ... very important conference on high-level matters of constitutional law and theory), so won't be Punditing for a few days. To ease your withdrawal symptoms, here's a draft of an analysis piece I'm preparing on the Parliamentary Privileges Bill - something that I've yet to see any commentary on in our media. Enjoy!

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The privileges of New Zealand’s Parliament—or, more accurately, those of its House of Representatives—primarily derive from two statutory sources. The first is the Bill of Rights 1688, Article 9. The second is the Legislature Act 1908, s.242.

Neither legislative instrument defines exactly what parliamentary privilege consists of, meaning that the existence (and ambit) of any particular privilege is a matter of legal interpretation. And as legal interpretation is the responsibility of the judicial branch of government, the courts have on a number of occasions been called upon to decide whether or not a given matter is covered by privilege.

While such judicial intervention is unavoidable, given the nature of the issue at hand, it does create the potential for inter-branch conflict. Simply put, the courts may be of the opinion that parliamentary privilege applies (or does not apply) in a particular way, while the members of Parliament disagree with that conclusion. This potential for disagreement then sets up a clash of authority. The courts’ role as interpreters and appliers of the law means that any judicial decision on whether and how parliamentary privilege applies in a given case effectively will define how it operates in future such cases. However, because parliamentary privilege has its basis in statute, and because New Zealand’s Parliament is a sovereign lawmaker, it always is open to it to legislate to overturn the judiciary’s interpretation of the law and impose its own.

What then makes this clash different to other areas where the judiciary and legislature disagree over the optimal form that law should take is the subject matter involved. In short, a court decision on parliamentary privilege involves the judicial branch deciding the extent of the legislature’s freedom from external intervention; whilst a legislative decision to overturn such a decision inevitably involves an element of self-dealing, as the individuals who are deciding what parliamentary privilege ought to mean are the same people who gain the most from it.

These sorts of concerns have come to the fore in the form of the Parliamentary Privilege Bill, introduced into the House at the start of December. While the proposed legislation would accomplish a number of ends, the primary reason for its introduction is to give effect to a series of Privileges Committee reports that recommended overriding the effect of two particular decisions by the Privy Council and the New Zealand Supreme Court. As these bodies were and are the highest bodies in New Zealand’s curial hierarchy, the Bill represents a significant assertion of parliamentary authority over the views of the judiciary.

1. Jennings v Buchanan and the end of “effective repetition”

The first judicial decision in Parliament’s sights is the Privy Council’s decision in Jennings v Buchanan. The case involved a defamation claim, brought after an MP (Owen Jennings) in a parliamentary debate accused a named public official of misusing public money to pursue an affair. While this parliamentary statement could not itself found a cause of action, as it fell under by the absolute protection afforded by Parliament’s “free speech” privilege, the Privy Council accepted that a later “effective repetition” of the statement could be relied on in court. (The exact words used by Owen Jennings in that "repetition" were that he “did not resile from his claim about the official’s relationship.”)

The Privy Council did not believe this approach improperly intruded into the internal affairs of the House, or to interfere with Parliament’s free speech privilege, as:

reference is made to the parliamentary record only to prove the historical fact that certain words were uttered. The claim is founded on the later extra-parliamentary statement. The propriety of the member’s behaviour as a parliamentarian will not be in issue. Nor will his state of mind, motive or intention when saying what he did in Parliament.

The response of members of Parliament to this decision was less sanguine. A report from the Privilege’s Committee, later unanimously accepted by the House of Representatives, concluded that: “taking no action at all in response to the [Privy Council’s] decision is [not] practicable. Members are being challenged in media interviews in terms directly derived from the 'effective repetition' principle. Unless public debate is to be stymied, this must be addressed.”

It went on to recommend that “the Legislature Act be amended to provide that no person may incur criminal or civil liability for making any oral or written statement that affirms, adopts or endorses words written or spoken in proceedings in Parliament where the oral or written statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.” This recommendation was repeated in two later Privileges Committee reports.

The Government has now taken it up by including in the Parliamentary Privilege Bill a provision (cl. 8(4)) to the effect that:

it is not lawful for evidence (including, without limitation, Hansard) to be offered or received, questions asked or statements, submissions, or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, ascertaining any content, effect, or meaning of a statement … —

(a) made outside proceedings in Parliament by any person; and

(b) to the effect (regardless of its form or terms) that the person affirms, adopts, endorses, or refers to the content, effect, or meaning of a statement or an action that a participant in proceedings in Parliament (who may, but need not, be the person) made or took in those proceedings; but

(c) that, if considered alone, does not in and of itself repeat that content, effect, or meaning.

Furthermore, for the avoidance of any doubt, the Bill also states in cl.10 that any such statements “are protected by absolute privilege.” The net effect is thus to undo the Privy Council’s ruling, meaning that legal liability will only attach to those extra-parliamentary statements that when considered by themselves contain some defamatory meaning (or, indeed, attract any other legal consequences).

The second judicial ruling threatened with a parliamentary override is the Supreme Court’s decision in Attorney General and Gow v Leigh. I've posted on this before, but for those still in the dark, the case involved a defamation claim brought by a communication’s advisor, Ms Leigh, after Trevor Mallard questioned her professional competence during his answer to a parliamentary question. Once again, this ministerial answer could not directly found a legal claim, due to Parliament's free speech privilege. However, Ms Leigh instead sought to sue the departmental advisor, Mr Gow, who provided Trevor Mallard with the information on which his answer was based. In turn, Mr Gow (joined by the Attorney-General, representing the Speaker of the House) sought to have the action thrown out, on the basis that his advising the Minister was a “proceeding in Parliament” to which absolute privilege attaches.

The Supreme Court ruled in Ms Leigh’s favour, for two reasons. First, it found that the correct test for whether privilege applied was whether it was “necessary” for the proper and efficient functioning of the House of Representatives that the occasion on which Mr Gow communicated with the Minister be regarded as an occasion of absolute privilege. In other words, had Mr Gow shown that without this kind of occasion being regarded as absolutely privileged, the House could not discharge its functions properly?

And having isolated this question, the Court then concluded that it was not necessary to give Mr Gow the protection of absolute privilege: “It cannot be conducive to the proper and efficient functioning of the House to give those communicating with a Minister in present circumstances a licence to speak with impunity when predominantly motivated by ill will, nor a licence to take improper advantage of the occasion by using it for an improper purpose.”

Once again, the members of Parliament disagreed with the judiciary's understanding of the law. In a Privileges Committee report, they rejected the Court’s approach to whether privilege applies (the “necessity” test) and also concluded that without the clear guarantee of absolute privilege, not only public servants but also other participants in the business of Parliament faced the risk of subsequent legal action. Quoting the Chair of the New Zealand Law Commission, Sir Grant Hammond, the Committee concluded that: “The Leigh decision does not appear to be grounded in the facts of parliamentary life, but rather it attempts to apply the law in the abstract. The reality of parliamentary life is that it is a set of complex interactions leading to expression in debates and select committees and it is not necessarily easy to draw sharp lines between these interactions and expressions.”

Consequently, the Committee recommended legislating to overturn the Court’s “necessity” test for “proceedings in Parliament”; a step the Parliamentary Privilege Bill takes in cl. 8(2) as follows:

For the purposes of Article 9 of the Bill of Rights 1688, and for the purposes of this Act, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of the House or of a committee, and therefore includes (without limiting that general definition) the following:

(a) the giving of evidence (and the evidence so given) before the House or a committee:

(b) the presentation or submission of a document to the House or a committee:

(c) the preparation of a document for purposes of or incidental to the transacting of any business of the House or of a committee:

(d) the formulation, making, or publication of a document, including a report, by or pursuant to an order of the House or a committee (and the document so formulated, made, or published).

3. Additionalmatters.

While the primary purpose of the Bill is to fix the problems that Parliament believes the Courts have created, it does also accomplish a couple of other interesting matters of note.

It specifically provides (in cl. 21) legal authority for the House of Representatives to levy a fine of up to $1000 on persons it finds to be in contempt. Although the House has made use of this purported power in the recent past, the legal basis for it doing so was a matter of some doubt. By explicitly authorising such punishments through legislation, Parliament removes any questions as to the enforceability of such an order.

In addition, the Bill clarifies (in cl. 22) that the New Zealand House of Representatives does not possess the power to expel from membership of the House, and that members’ seats become vacant only in the specific circumstances provided in the Electoral Act 1993, section 55. There again had been some doubt about this issue, with disagreement amongst academic commentators as to whether the House’s “composition privilege” still permitted it to take such a step against one of its members. Parliament is now moving to clarify the matter by disavowing any such legal power.

Comments (7)

First, I doubt either of these things makes much difference one way or the other. There is no welter of defamation cases that turn on either of these points. MPs' insistence that this is an attack on their constitutional rights and ability to perform their functions doesn't seem to be supported by any evidence. MPs and officials may say that they've had to pull their punches and mince their words and that this is having a serious effect on the functioning of democracy, but I'm not buying it.

Second, officials in Gow's position don't need to worry. Gow would almost certainly have been protected by qualified privilege anyway. That would head off a defamation action in any case unless there has been, essentially, bad faith. The threshold there is pretty high: officials acting with bias or carelessness or irrationality are still protected. They only lose the defence if they've acted without a positive belief in what they're saying, or where their dominant motive is something other than pursuing their official duties. Remind me why it's important to protect officials who are acting in bad faith?

Third, I think there is good reason to support the courts' conclusions about MPs saying they "stand by what they said in Parliament." That is, that this is effective repetition outside the House, so they shouldn't receive immunity from defamation lawsuits when they do it. That's because:

1. They are drawing additional attention to their statement. They will cause people to go and look at it, and articles to include reference to it. They're getting extra mileage from it, and if it's wrong and defamatory, it's doing additional harm, sometimes lots of additional harm. I say, if they want to springboard off their statement in Parliament, they should bear the attendant risks for any resulting bellyflop that splashes someone's reputation. (Okay, I might have overdone that metaphor.)

2. It's quite useful to be able to say to an MP, "will you repeat that outside the House?". It's a good test of whether they are really prepared to stand by it. As an observer, I can get a much better feel for an MP's sincerity and credibility, depending on how they answer that question. If they're not prepared to repeat the statement, I know to take it with more than the usual grain of salt, unless they can provide some good reason for their reluctance.

3. Parliamentary privilege can be, and has been, abused. It allows MPs to even tell deliberate and harmful lies with impunity. I don't think the opportunity to do this should be expanded.The right to have a statement read into the Parliamentary record seems like a very weak response to what could be a crushing defamation.

4. As I said, it doesn't seem to have proved to be a problem in practice.

That said, the Bill seems fairly narrowly cast, so even if the courts' decisions were overturned, it's not going to shake the world. Both seem fairly small points to me, things that only MPs and officials are getting their undies bunched about.

I'm not so sure it is just a case of "MPs and officials [saying] that they've had to pull their punches and mince their words and that this is having a serious effect on the functioning of democracy ... ." Sure, the Privileges Committee has expressed concerns about the on-the-ground impact (of Jennings v Buchanan in particular). But it also spends a lot of time saying that it thinks the Courts just got the basic legal approach wrong, insofar as they pretend (and it really is a pretence) not to be "questioning" the words spoken in Parliament (J v B) and apply a faulty test to what is a "proceeding in Parliament" (Gow v Leigh).

Furthermore, I accept that qualified privilege will in virtually all cases be as good as absolute privilege for public servants (plus, they don't have to pick up the tab for their legal costs in any action, so it's a no-risk situation for them personally). That said, the Privileges Committee spent a lot of time in its report looking at the wider implications of the Supreme Court's ruling, and concluded that to view the issue through a defamation lens alone risks missing other possible legal consequences of the approach.

Finally, on the "if you defame someone in the House, you ought to have to shut up about it outside the House" approach - this is pretty much what the Privy Council said. Personally, I think it's been somewhat detrimental to holding MPs to account for their parliamentary claims - they won't even acknowledge what they said (least they accidentally "effectively repeat" it), let alone try and defend it.

The big point, however, is that I think what we see here is a clash in perspectives. The Courts are focused on the individual claims before them, and are saying "if this person has suffered a harm, then the law ought to provide a remedy unless there is a really, really good reason not to" ... which has caused them to pare back the reach of privilege. The MPs have then focused on the institutional workings of the House, and said "if there's any danger that allowing a person a legal remedy may inhibit how we conduct our business, then they ought not to be able to get one." Both have their in-built biases and potential to under-value some matters and over-estimate others. So what interests me most is, whose perspective finally triumphs?

Personally I usually find such questions easy to answer - in this case between choosing if people ought have legal remedy for harm done by parliamentarians telling lies and parliamentarians being protected from responsibility for telling defmaing lies it doesn't seem a diffilcult question.

I don't think the first part is so bad as it explicitly allows for independent defamation to remain actionable and I think for reporters who once asked "Do you stand by what you said?" it will suffice for them to say "Please repeat what you said." would it not?

Inviting them to make the independent statement acheives the same thing while allowing conversation to freely refer to what was said without complicatingcalculations on what's actionable.

The second part however does invite public servants to act in bad faith without consequence and actively removes recourse from the public in the face of parliamentary privilege - and I do not much like increased privileges for the already privileged and consequent lack of accountability.

I can see the argument for absolute privilege for officials as slightly stronger - it's about the fear of litigation, not the fear of losing. If you've absolute privilege no one is going to sue you. If you've only qualified privilege, someone may sue you and allege bad faith, so you are more likely to be reticent to speak.

Also, on effective repitition: suppose an MP says in Parliament:

Question: "... Prisoner voting ... Andrew Geddis ...?"

Minister: "... and we all know Andrew Geddis is a lawyer, and you know what they're like!"

Andrew is understandably miffed at being called a lawyer, so wants to sue. Can't yet of course, but... then the Minister is asked a question on the TV: "will you repeat what you said in the House yesterday about Professor Geddis?"

Minister: Yes, I said that "we all know Andrew Geddis is a lawyer, and you know what they're like!"

How is this not "The publication of a fair and accurate report of proceedings in the House of Representatives...", and thus protected by statutory qualified privilege?

Also, just had a thought, does expanding the definition of "proceeding in Parliament" to cover advice from ministerial officials have any wider consequences? Does the Office of Clerk become responsible for its safe-keeping? If someone leaks ministerial advice, does that become a contempt of Parliament? I suspect the answers to these are "no", but are we sure the answers to all the other questions are the same? Beyond absolute privilege attracting, what are the other consequences of something being a proceeding in Parliament?

Minister: Yes, I said that "we all know Andrew Geddis is a lawyer, and you know what they're like!

That's not repeating what was said, it's reporting what was said. The reporter should reply "Yes Minister, we know what you said then - I would like you to state it here and now independent of speaking in Parliament to reassure my audience you really believe and stand by it."

does expanding the definition of "proceeding in Parliament" to cover advice from ministerial officials have any wider consequences?

I was similarly wondering about how wide a net was being cast with protection for...

(c) the preparation of a document for purposes of or incidental to the transacting of any business of the House or of a committee: